06.26.17


Travel Ban Upheld in Part by the Supreme Court for Now

The U.S. Supreme Court issued a decision today regarding whether the temporary injunctions entered by the lower courts against Executive Order 13780, "Protecting the Nation From Foreign Terrorist Entry Into the United States," commonly known as the Travel Ban, should be upheld. In short, the Supreme Court indicated the Travel Ban should not apply to individuals who have "any bona fide relationship with a person or entity in the United States." The Travel Ban could however be applied to those without such a connection. Additionally, where the Executive Order suspended the U.S. refugee program, the Supreme Court is allowing those with similar bona fide relationships to enter the U.S.

Similar to deciding other temporary injunctions, the Supreme Court had to weigh the following factors: (1) the likelihood of success of the challenge and (2) the harm that would be caused if no quick action were taken. Based on this balancing, the Supreme Court allowed only part of the Travel Ban to be enforced. This is a temporary decision and the Supreme Court has said that it will revisit this matter when it returns from its recess in October. Of legal note is that some members of the Supreme Court believed that the group exempt from the Travel Ban was too broad.

What This Decision Means:

The Executive Order prohibited the entry of individuals from six different countries (Libya, Iran, Somalia, Sudan, Syria, and Yemen) for at least 90 days. The Supreme Court is now allowing individuals from these countries to enter the U.S. so long as these individuals can demonstrate a "bona fide relationship with a person or an entity in the United States."

The Supreme Court reasoned that a sufficient "bona fide relationship" must be similar to those held by the individuals who brought the lawsuits against the Travel Ban.

Examples include the following:
  1. Those entering the U.S. to live with or to visit family members (e.g., wife, mother-in-law, etc.);
  2. Relationship must be "formal, documented, and formed in the ordinary course," not just to evade the Travel Ban;
  3. Students admitted to attend U.S. institutions;
  4. A worker who has accepted an offer of employment from an American company;
  5. A lecturer invited to address an American audience; but
  6. Not those who are added onto client lists of non-profit organizations just to avoid the Travel Ban.
For those who do not fit exactly into the examples provided by the Supreme Court, much discretion remains with the State Department as far as the issuance of visas and with the U.S. Customs and Border Protection officers at airports and borders as far as whether they would admit individuals. What is also unclear is whether there will be sufficient training for the implementation of the Supreme Court decision. Again, this is not a final order and it will not be the last that we will hear of this. The Supreme Court has issued a temporary decision and has indicated that it will revisit this in October.

Should you have any questions concerning the above update, which should not be construed as legal advice, please contact Clark Lau LLC to see how this may impact your specific circumstances.